Employers Should Be Liable For Punitive Damages When Employees Cause Serious Injury While Driving, Texting, Talking

By referring to distracted driving as a "deadly epidemic" on Wednesday, U.S. Transportation secretary Ray LaHood was hardly being controversial. Every year 1.2 million traffic crashes involve drivers not paying attention, according to the National Highway Safety Administration. Not surprisingly drivers' use of cell phones and computers for talking, texting and emailing is often the cause of such inattention. Drivers from virtually all walks of life are undoubtedly guilty of engaging in this dangerous behavior. A lengthy article in today's New York Times focuses on the extent to which employees attending to work related matters while driving, whether checking email, following up with a client or checking in with a dispatcher, contribute to this problem. The article provides some chilling accounts of the repercussions of doing so. On a positive note, however, it states that some large companies are starting to recognize the danger posed by their multitasking, distracted employees while on the road. In response, some are banning employees from using phones and computers while driving. The fear of litigation arising from injury or death caused by a distracted employee on a cell phone is a motivating factor behind such self-imposed bans.

Our state, and some cities and municipalities in Illinois, is keen to the dangers posed by distracted driving. Recently, Illinois imposed a ban on texting while driving. The City of Chicago presently requires cell phone users to use a hands free device while operating a vehicle. These laws, while welcome, are difficult to enforce. Also, the pressure that many employees, both white collar and blue, feel to respond to work emails, phone calls and text messages while on the road may be far more compelling than the remote risk of being ticketed for doing so. One way to compel employers to institute cell phone bans is to put them on notice that a failure to institute such a policy could hit them hard where it hurts, in the purse. We have reached a point where the dangers of driving while using a cell phone are so thoroughly documented and well understood that use of a cell phone while driving should support a cause of action for willful and wanton misconduct . An employee who causes an accident due to inattention from cell phone use that results in serious injury or death should result in the employer being held liable to pay very substantial punitive damages to the victim or the victim's family. In my opinion, existing Illinois law supports this proposition.

Negligent conduct is different from that which rises to the level of being "willful and wanton". Negligence is a failure to act as a reasonable person would under similar circumstances. A victim harmed by conduct that is "merely" negligent may not collect punitive damages from a defendant. On the other hand, conduct is willful and wanton where it "shows an utter indifference to or conscious disregard for the safety of others." I.P.I. 14.01. "A defendant is willful and wanton when he has actual or constructive knowledge that his acts, or his failure to act, create a high probability that others will incur serious physical harm, and the defendant nevertheless recklessly disregards this danger." McDermott v. Metropolitan Sanitary District, 240 Ill.App.3d 1, 28, 607 N.E.2d 1271 (1st Dist. 1992). It is well established in Illinois that an employer may be held liable for both the negligent and willful and wanton conduct of its employee where the employee was acting within the course and scope of his employment. "A willful and wanton cause of action based on a respondeat superior theory is similar to a negligence action, except that the level of the defendant's conduct is more than mere negligence, but less than intentional conduct. The allegations of a willful and wanton claim must set forth facts to establish that the employee, within the scope of his employment, acted with willful and wanton disregard, or conscious indifference towards" the injured person. Ledesma v. Cannonball, Inc., 182 Ill.app.3d 718, 726, 538 N.E.2d 655 (1st Dist. 1989). In plain language, where an employee is held to have acted recklessly, his employer is automatically held to have done so as well, so long as the employee was undertaking his ordinary duties and responsibilities in furtherance of his employer's business at the time. "Such a claim may . . . give rise to punitive damages." Id.

To the best of my knowledge, no Illinois court has considered whether cell phone or computer use while driving may be considered willful and wanton behavior. But the evidence now exists that could reasonably lead a jury to conclude that it is. Our own Illinois Secretary of State, Jesse White, recognizes that driving while operating a cell phone is reckless. According to a recent Chicago Sun-Times article, White, who spearheaded Illinois' new anti-texting law, said, "Who can drive while putting their thoughts together, hitting the right keys and sending a message? That's a formula for someone getting hurt of killed." Three years ago a group of University of Utah psychologists "published a study showing that motorists who talk on hand held or hands-free cellular phones are as impaired as drunken drivers." If driving while intoxicated demonstrates a "reckless disregard for the safety of others" (and who would argue otherwise), then surely driving while texting, talking on the phone or computing demonstrates the same measure of recklessness. Employers must explicitly communicate to their employees that they are not to operate cell phones or computers while driving. Hopefully, doing so will reduce the number of employees who do so and will cut the number of drivers, pedestrians and bicyclists killed and seriously injured each year by inattentive driving. Only when employers formally institute a policy banning cell phone use should they be able to escape liability for punitive damages where an employee using a cell phone for work a related purpose while driving causes serious harm.

Related articles by Zemanta

• Ford Says No to Texting While Driving (abcnews.go.com)
• Distracted Driving: Should Talking, Texting Be Banned? (time.com)
• Feds weigh cell phone ban for bus, truck drivers (seattletimes.nwsource.com)

Bicycle Commuter Seriously Injured Near 4900 Block of South California Avenue

We have been retained to represent a cyclist who was seriously injured when he was struck from behind by a vehicle along the 4900 block of South California Avenue in Chicago on September 12th. Our client, a former United States Marine, was rushed from the scene unconscious via ambulance to Mount Sinai Hospital where he was diagnosed with a concussion, a fractured shoulder, and deep gouges in this head, face, arm and leg requiring surgical closure. He continues to work toward recovery, but he is expected to have some permanent scarring and disfigurement.

The incident took place at around 5:30 p.m. The bicyclist was on this way home from work at the time we was struck. Our firm is initiating a full investigation of this matter, and is looking into allegations that the driver of the vehicle was intoxicated at the time of the incident.

30% Increase In Bicycle Commuting In Chicago

Chicago commuters are part of a nationwide increase in the number of people bicycling to work. Between 2005 and 2008 30 percent more Chicagoans biked to work, according to statistics from United States Census Bureau's American Community Survey for those years. During that three year period the city experienced a 7.78 percent increase in the total number of workers 16 years of age and over. The nation as a whole saw a 36 percent gain in the number of bicycle commuters during the same period. Nationwide, there was a 43 percent increase in bicycle commuting between 2000 and 2008.

When May A Public Entity Be Held Liable For Injuries Caused By Roadway Defects and Hazards

Bicyclists can and do sustain injuries from defects and hazards in the roadway. These cases are actionable in Illinois; a lawsuit can be filed against a local town, city or municipality for injuries sustained due to a failure to properly maintain the roadway. However, in order to be successful such cases must overcome two substantial hurtles. Firstly, the injured cyclist must demonstrate that he or she was a permitted and intended user of the portion of roadway upon which the injury occurred. Secondly, he or she must prove that the municipality had actual or constructive knowledge of the injury causing hazard.

Many Illinois bicyclists may be surprised to learn that they are not necessarily the intended users of many of our state's roadways and streets. Illinois law explicitly grants bicyclists "all of the rights and . . . duties applicable to the driver of a vehicle" on roadways. 625 ILCS 5/11-1502. But that statute only makes the bicyclist a permitted user of Illinois roads, not necessarily an intended user of those roadways. The Illinois Supreme Court took up this issue in Boub v. Township of Wayne, 183 Ill.2d 520, 702 N.E.2d 535 (Ill. 1998). In that case, a cyclist sued rural Wayne Township after sustaining an injury while crossing a one-lane bridge the township maintained. "The surface of the bridge consisted of wood planking; some time before the accident, asphalt patching between the planks had been removed as part of a bridge renovation project, in preparation for the installation of a different bridge deck" Boub, 183 Ill. 2d at 522. The cyclist alleged that he was "thrown from the bicycle when his front tire became struck between two of the planks on the bridge." Id. Wayne Township, in response to the suit filed against it, alleged that it was immune, pursuant to Section 3-102(a) of the Tort Immunity Act, from liability unless the bicyclist could demonstrate that he was both a permitted and intended user of the bridge. There was no controversy that the cyclist was permitted to bike across the bridge. However, the township asserted, and the Supreme Court ultimately agreed, that he was not an intended user of the bridge. The Court stated, "In the present case, there is nothing in the roadway or bridge that would suggest that it was intended for use by bicycles. No special pavement markings or signs indicated that bicyclists, like motorists, were intended to ride on the road or bridge, or that bicycles, rather than vehicles, were the intended users of the route." Boub, 183 Ill.2d 529. The bicyclist's claim was, therefore, dismissed.

Subsequent cases clarified when a bicyclist is an intended user. In Brooks v. City of Peoria, 305 Ill.App.3d 806, 712 N.E.2d 387 (3rd Dist. 1999), the appellate court held that a seven-year-old bicyclist who was injured riding on a city sidewalk was a permitted and intended user of the sidewalk and, therefore, could maintain his personal injury action against the city. The Court felt that the injured bicyclist's age was important in reaching its holding. It stated, "Common sense would indicate. . . that the nature of a sidewalk includes use by children in strollers, motorized wheelchairs, tricycles, training bicycles, junior bikes, roller blades and roller skates." Brooks, 305 Ill.App.3d at 808. Had the injured cyclist been of majority age, the Court would have ruled differently. In Latimer v. Chicago Park District, 323 Ill.App.3d 466, 752 N.E.2d 1161 (1st Dist. 2001), a cyclist brought a lawsuit alleging that she was injured when she fell from her bicycle on a municipal street that was broken and uneven. The appellate court held in dismissing the bicyclist's suit, however, that because the accident occurred in a place where there were no bicycle lane markings she was not an intended user of that portion of roadway and was not entitled to damages under the Tort Immunity Act.

The bottom line is this: a bicyclist may not maintain a lawsuit against a local governmental entity, such as a city, town or municipality, for injuries sustained due to hazards or defects in the roadway unless there was present at the time of the accident some signs, markings or other clear indication that the roadway was intended for use by bike traffic. In light of the state of the law in Illinois, bicyclists are encouraged to ride in bike lanes and designated bike paths. Should you become injured while doing so due to a hazard or defect in the road, you will be able to seek compensation of the harms and losses you sustain as a result.

The second hurtle a bicyclist must overcome to bring a lawsuit against a local municipality for injury caused by a hazard or defect in the roadway is notice. The relevant portion of the Tort Immunity Act states that a governmental entity "shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition." 745 ILCS 10/3-102(a). The notion of "actual notice" is easy enough to understand. If one of the public entity's "employees has actual knowledge of the defect in question" then that entity may be found to have notice. Glass v. City of Chicago, 323 Ill.App.3d 158, 751 N.E.2d 141 91st Dist. 2001). Also, if the municipality, through its employees, actually created the road hazard or defect then it will be found to have had knowledge of its existence. In the absence of actual knowledge, the courts will consider whether the public entity had "constructive notice" of the defect. The notion of constructive notice is that even if the municipality did not know of the defect, it should have. "Constructive notice of a condition is said to exist where the condition has existed for such a length of time or is so conspicuous or plainly visible that the public entity should have known of its existence by exercising reasonable care and diligence." Ramirez v. City of Chicago, 318 Ill.App.3d 18, 22, 740 N.E.2d 1190 (1st Dist. 2000). For example, in Ramirez a lawsuit was brought against the City of Chicago by a pedestrian who was injured after tripping over sidewalk slab deviation. The appellate court upheld the trial court's finding that the city had constructive notice of the condition where a witness testified that the sidewalk slabs at the place of the fall "were separated by a height of maybe a couple of inches" and that the condition had existed there for some sixteen years prior to the fall. Id. This rule of law certainly makes sense. A municipality charged with maintaining a roadway cannot be expected to monitor the condition of the road at all times of the day and night. If you are unlucky enough, for example, to ride your bicycle into a sink hole that developed only hours before reaching the accident site, you will not be able to establish that the public entity charged with maintaining the area had constructive notice of the defect.

Liability on the part of a public entity for injuries caused by the condition of the roadway must, of course, be determined on a case by case basis. The devil is always in the details. But, as a general rule, a public entity must take reasonable precautions to protect permitted and intended users, including bicyclists, from roadway hazards it knew of or should have known of.

ABA Journal's Top 100

At the end of every year the American Bar Association publishes a list of the top 100 law blogs. Click here to view a list of the best from 2008. If you would like to nominate The Chicago Bicycle Advocate for inclusion on the 2009 list please click here. Thanks!

Insurance Coverage For The Bicycle Accident Victim

Bicycle accident litigation is about money. If you are injured while riding your bicycle due to someone else's negligence you may look to the person at fault to compensate you for your harms and losses. In Illinois, an injury victim may be compensated for his or her medical bills, lost wages, loss of a normal life, disfigurement and pain and suffering. Most of the time, monetary compensation will come from the at fault person's insurance. (I have settled cases that involved compensation from a defendant's personal assets, but that is rare. Frankly, most people do not have significant cash assets to contribute to settlement.) Which insurance policy or policies may the injured bicyclist look to? Here is an overview of the three most common scenarios that tend to arise in bicycle cases:

1. Bicyclist injured by insured motorist. This one is a no-brainer. If you are injured by a negligent motorist you are entitled to compensation from his or her motor vehicle insurance policy. The driver's policy will generally have two separate provisions that may provide the injury victim with compensation. First, you may look to the "medical payments" provision of the driver's policy. That provision will usually provide for a relatively small amount of coverage for medical expenses incurred regardless of who was at fault for causing the accident. Additionally, you may look the the policy's liability coverage provision for compensation. To receive compensation under that provision you will need to demonstrate that the driver was negligent in causing your injuries. All Illinois drivers are required to have motor vehicle coverage in an amount not less than $20,000.

2. Bicyclist injured by uninsured or inadequately insured motorist. Though Illinois law requires motorists to have insurance coverage, many do not. Also, if the injuries sustained are very severe, or if the incident resulted in the cyclist's death, the motorist may have coverage that fails to fully compensate the victim or the victim's family. In those instances, if the injured bicyclist has his or her own motor vehicle insurance policy, or is covered under another family member's policy, the cyclist may look to the uninsured or underinsured motorist provision of that policy. This is permitted even though the victim was riding a bicycle and the accident did not involve his or her own motor vehicle. Generally, your uninsured or underinsured motorist coverage protects you even when you are injured by a motor vehicle while a bicyclist or pedestrian.

3. Bicyclist injured by another bicyclist. Most serious bicycle related injuries arise from tangles with motor vehicles. However, bicyclists certainly do, on occasion, cause serious injury to fellow cyclists due to negligent conduct. My own experience suggests that that is especially true along Chicago's crowded lake front bike path during the very busy summer months. Under this circumstance, the injured cyclist may look to the at fault cyclist's homeowner's or renter's insurance policy for compensation. The applicability of homeowner's coverage is not a given, and will depend on the specific wording in the policy. (For those interested in an in depth analysis of the matter please see the Illinois Supreme Court's decision in United States Insurance Company v. Schnackenberg, 88 Ill.2d 1, 429 N.E.2d 1203 (Ill. 1981)).

Of course, many bicyclists will look to their own medical insurance to cover them, if they are lucky enough to have it, in the event of an injury. Doing so is perfectly fine and will not preclude also looking to the at fault party's insurance for coverage. Bare in mind, though, that your medical insurance provider will probably look to be reimbursed for a portion of the amounts it paid toward your medical bills once you are compensated by the other party's insurer.

It is worth noting that bicycle accidents can and do arise from negligently placed roadway barriers or negligent roadway design or maintenance. In those instances, the injured bicyclist may look to the party responsible for the design and/or maintenance of the road, path or trail for compensation. Consideration of when and how the cyclist may recover in that circumstance will be covered in a later post.

A Warning To Chicago Motorists

Attention Chicago motorists: Before you decide to cut-off that bicyclist whom you think is probably some messenger punk with militant tendencies, be advised that he just might be an off-duty Chicago police officer who really, really does not like being cut-off. You have been warned.